A gurney sits in the Florida State Prison's new execution chamber this year. The chamber has been redesigned after the botched execution of Angel Nieves Diaz on Dec. 13, 2006. It allows better views of the prisoner during the lethal injection process.

Florida is set to put convicted child killer Mark David Schwab to death Tuesday, resuming executions for the first time since a botched execution more than 18 months ago.

In that time, the state has made changes to the lethal injection process such as redesigning the death chamber and adding a step to ensure an inmate is unconscious before lethal drugs are injected,

But critics say the state failed to address problems with the drugs themselves and training of the people administering them.

"If you keep doing what you've done in the past, why do you not expect the same result?" asked Peter Cannon, an attorney representing Schwab for the Capital Collateral Regional Counsel's Tampa office.

Florida and the three dozen other states with lethal injection use a similar three-drug combination in executions. Inmates are first injected with a sedative, then a paralyzing agent and finally a drug that stops the heart.

Legal challenges have raised questions about the drugs. Schwab's appeal suggests Florida's high dosage of the sedative slows the effect of the other drugs. An Ohio judge earlier this month ordered the state to drop two of the drugs and deliver only a massive dosage of the sedative.

Members of a commission studying Florida's execution method recommended the state consider discontinuing use of the paralyzing agent, which is banned in the euthanization of pets. The commission also recommended the state look into updating all the chemicals used in the process.

But the Florida Department of Corrections decided to stick with the existing drugs because they're the same ones used in other states, said spokeswoman Gretl Plessinger.

"Right now, this is the protocol that other states are using, so we didn't want to deviate from that," she said.

Unless a court issues a stay, Schwab will be executed at 6 p.m. Tuesday at Florida State Prison near Starke. Schwab was sentenced to death for the rape and murder of 11-year-old Junny Rios-Martinez in 1991.

His execution would end a hiatus that started with the botched execution of Angel Diaz and continued with the U.S. Supreme Court considering a legal challenge to lethal injection.

The execution of Diaz, who appeared to be wincing in pain and required a second round of lethal drugs, led to the appointment of the commission that studied Florida's execution process. The commission found IV lines had been pushed through Diaz's veins and recommended changes to prevent the problem from happening again.

Before executions could resume, however, the U.S. Supreme Court took up a lethal injection challenge that put executions on hold across the country. In April, the court issued a decision upholding lethal injection in a Kentucky case, Baze v. Reese.

The high court ruling didn't end the debate over lethal injection, said Deborah Denno, a professor at Fordham Law School who specializes in death penalty issues.

"Baze didn't close doors at all," she said. "It left a wide-open door."

Denno said an Ohio judge's decision this month to drop two of the three drugs in the combination could start a trend of such cases. She said attention to lethal injection has also spurred a wave of new research exposing flaws in the method.

"This is stoking the fire of the issue," she said.

University of Miami researcher Teresa Zimmers has taken part in three studies of executions. She said one problem with lethal injection is that states fail to adjust the drug dosage depending on the inmate's body weight or medical history.

While states use the same drugs, they deliver different amounts. Florida administers five grams of the sedative sodium pentothal, compared to two grams in Georgia and Ohio. Florida officials have argued the larger amount ensures an inmate is unconscious.

But Cannon studied previous executions in the state, finding the larger dose could be interfering with other drugs. Florida executions lasted 13.8 minutes on average - longer than the time a state expert testified they should take, and longer than the average times in Georgia and Ohio.

Schwab's appeal suggests the sedative is slowing the effect of the other drugs. But Dr. Kayser Enneking, chairwoman of the anesthesiology department in UF's College of Medicine, questioned that conclusion.

"I'm not sure that a larger dosage would have any effect on slowing the effect of the other drugs," she said.

There are also questions about the paralytic drug. Because the drug can mask unconsciousness, the American Veterinary Medical Association bans its use in euthanizing animals.

Some members of Florida's commission, including Gainesville Circuit Court Judge Stan Morris, suggested the state consider dropping use of the paralyzing drug. State officials argued the drug serves a purpose by masking involuntary convulsions that could shock observers, including the victim's family.

Denno said an Ohio case shows the drug issue is fertile legal ground.

Earlier this month, an Ohio judge ordered the state to use only a massive dosage of the sedative drug to execute inmates - the same method used in euthanizing animals, but a method that could make executions last as long as 45 minutes.

Zimmers said states are essentially conducting unethical medical experiments with inmates in continually tweaking execution procedures.

"They're pretty much arbitrary decisions made in some cases by judges," she said.

But medical ethics have limited the involvement of doctors in the process. Florida shields the identity of medical professionals involved in executions, going so far as to mask the doctor who declares inmates dead.

Enneking said those ethical constraints, as well as the fact the drugs were made for purposes other than causing death, make it difficult to identify problems with the method.

"There's no perfect way to do this as far as I can tell," she said.

Zimmers said doctors are already involved in the process, so it's time for them to apply medical knowledge to lethal injection.

"If it's so ethically loaded, it demands it should be examined," she said.

His execution marks Florida's first state killing since the U.S. Supreme Court ruled in April that the commonly used, three-drug lethal cocktail is not cruel and unusual punishment under the U.S. Constitution.

That ruling ended a de facto moratorium on the death penalty that had swept the nation while the high court focused on the issue.

Since the ruling, nine condemned men have been put to death across the country -- far fewer than the "bloodbath" death-penalty opponents had feared would follow the decision.

Now, eyes shift to Florida on Tuesday, when Schwab, barring any last minute legal moves, will become the 10th man to die since the ruling.

"There is no question of his guilt, and the law says [lethal injection] is an appropriate punishment," said Wayne Holmes, a Seminole-Brevard assistant state attorney and prosecutor on the initial Schwab case.

Junny's parents, Vicki and Braulio "Junny" Rios-Martinez, could not be reached for comment.

For the past 16 years, Schwab has lived in a 6-by-9-foot cell in Florida State Prison in Starke. He joined death row in 1992 after he was convicted of killing Junny, a little boy who loved surfing and baseball.

On April 18, 1991, Schwab called the 11-year-old's school and identified himself as the boy's father. He left a message for Junny to go to a baseball field after school. Witnesses said they saw Junny get into a U-Haul with Schwab.

Five days later, Schwab led investigators to the boy's body, which he hid inside a footlocker in a palmetto thicket in Canaveral Groves, north of Cocoa.

Schwab was originally scheduled to die by lethal injection Nov. 15. The U.S. Supreme Court issued a last-minute stay that postponed the execution while it considered the lethal-injection issue in a case that originated in Kentucky.

Some had hoped the top court's decision would quash many of the legal challenges to lethal injection. But the closely watched ruling did little to settle the debate, and some say it has actually sparked more on the issue.

"It's really started the ball rolling," said Deborah Denno, a law professor at Fordham University and a death-penalty expert. The U.S. Supreme Court "hasn't changed things that much, but there is a more heated discussion," she said.

Some states -- such as Georgia and Texas -- are moving forward with executions this year. Texas has 16 scheduled to die before the end of the year.

Others -- such as Ohio and Delaware -- are examining the way they carry out capital punishment. Last month, a judge in Ohio became the first in the country to order authorities to stop using the three-drug cocktail and opt for a single, large dose of barbiturate, which is often used in animal euthanasia.

"This may have reverberations in other states," said Ty Alper, associate director of the death penalty clinic at the University of California Berkeley school of law.

It doesn't appear that Florida is headed toward the one-dose process yet.

Last year, Florida enacted new and detailed procedures for how to administer the three-drug cocktail after convicted-killer Angel Nieves Diaz needed a second dose of the fatal chemicals and took 34 minutes to die in 2006.

The state responded by requiring more staff training and better monitoring of proceedings in the death chamber.

Schwab will be the first condemned prisoner to enter the chamber since Diaz. There are no other executions scheduled in Florida. But there are 377 Florida prisoners waiting on death row.

Out of optionsIn 1992, Mark Dean Schwab was sentenced to death in the 1991 slaying of Junny Rios-Martinez, but the execution was delayed by appeals. On Nov. 14, Schwab's execution was delayed until the U.S. Supreme Court decided whether lethal injection is constitutional. In April, the court ruled it is, and in May, Gov. Charlie Crist ordered that Schwab be executed.

Sarah Lundy can be reached at slundy@orlandosentinel.com or 407-420-6218.

Florida prepares for 1st execution since foul up

STARKE, Fla. (AP) — Florida's new procedure for lethal injections could be tested Tuesday when executioners strap down a condemned inmate for the first time since a botched execution.

Mark Dean Schwab, 39, is scheduled to die exactly 16 years after he was sentenced in the 1991 kidnapping, rape and murder of 11-year-old Junny Rios-Martinez.

Florida officials say they have resolved problems with the December 2006 execution of Angel Diaz when needles were accidentally pushed through his veins, causing the lethal chemicals to go into his muscles instead, delaying his death for 34 minutes — twice as long as normal. Some experts said that would cause intense pain.

Then-Gov. Jeb Bush stopped all executions after Diaz was killed, but Florida and other states were also held up as they waited for the U.S. Supreme Court to rule the three-drug method of lethal injection used by Kentucky was constitutional. Thirty-four other states, including Florida, use a similar method.

Florida's new procedure requires the warden to make sure the inmate is unconscious following the injection of the first chemical, sodium pentothal. Then the executioner will inject pancuronium bromide to paralyze his muscles and potassium chloride to stop his heart. It also requires people with medical training to be involved in the process.

Schwab and his attorneys aren't so sure the problems are fixed. An analysis done for Schwab's lawyers showed that nine of the 30 mock executions performed by Florida's Department of Corrections between September 2007 and May were failures, said one of his state-paid attorneys, Mark Gruber.

The corrections department said its mock exercises have included preparation for potential problems such as a combative inmate, the incapacity of an execution team member, power failure and finding a vein.

"Training for the unexpected is not a failed mock execution," said Gretl Plessinger, a corrections department spokeswoman. "We're planning for contingencies."

Schwab's legal options are running out. On Friday, the Florida Supreme Court rejected his latest appeal claiming the new procedure still carries the risk of causing intense pain and suffering.

The state has argued successfully in several courts that the procedure meets all constitutional tests against cruel and unusual punishment and that Schwab cannot raise the issue again.

Schwab's attorneys did not return calls after the appeal was rejected Friday, but they are expected to next turn to the federal courts. The U.S. Supreme Court has allowed eight lethal injections to continue since upholding the Kentucky case.

That ruling raised a lot of questions, said D. Todd Doss, an attorney in northern Florida who has handled several death penalty cases but isn't involved in Schwab's appeals.

"I didn't think it cleared the legal landscape," Doss said, because it did not determine whether there was a substantial risk that Schwab would experience intense pain and suffering.

Senior Assistant Attorney General Kenneth S. Nunnelley said Schwab's claims in two previous challenges to lethal injection have also been rejected. "He does not get another bite at the apple," he said.

Family of Schwab's victim are counting down the days to execution with a timer on a Web site devoted to the boy. They've been through years of appeals, and they decided not to comment on the latest.

"The roller coaster has begun, and we don't want to get on," Vickie Rios-Martinez, Junny's mother, said recently.

Schwab raped and killed Junny a month after he was released early from a prison sentence he got for raping a 13-year-old boy, who was from Cocoa, a small town on the Atlantic coast of Florida.

Schwab got close to the boy and his family by posing as a reporter who promised to help the boy with his dream of becoming a professional surfer. On the day of the rape and murder, Schwab called the boy's school posing as his father, then picked him up there.

The case prompted Florida's Junny Rios-Martinez Act of 1992, which prohibits sex offenders from early release from prison or getting credit for good behavior.

"The state is the one who is the biggest victimizer. They let him out. They knew who he was," the boy's mother told The Associated Press in November.

Schwab's execution is to be held at the state's death chamber in Starke, which is about 40 miles southwest of Jacksonville.

During his time at Florida State Prison, McAndrew earned the moniker"The Walking Warden" because he spent more time outside his officewalking the grounds than behind his desk.

He said he visited Death Row every day.

McAndrew said he supported the death penalty during his 20-plus yearswith the Department of Corrections.

"One day I just sat down and said, 'This is wrong. This is wrong. Wehave no business killing people,' " he said, except in self-defense,in defense of someone else or in defense of the nation.

Not everyone agrees.

Proponents of the death penalty, including some families of murderedchildren such as Rios-Martinez, argue that the execution helps themdeal with their loss.

"That will not serve as a substitute for getting our son back, but itis as close as we can get to justice in this rather imperfect worldwe live in," said Don Ryce, whose 9-year-old son Jimmy was raped,murdered and dismembered in Miami-Dade County in 1995. Juan CarlosChavez was convicted of the crime.

Ryce said Chavez's execution would bring his wife, Claudine, and him"as close to a feeling of peace to that chapter of our life thatwe're ever going to get." He said he supports the death penalty,although he may not live to witness Chavez die because of the lengthyappeals process.

"He'll probably outlive us because of our screwed-up system," Rycesaid. "But if we're still alive, we'll be there for the execution.And we have had some people promise us if we don't make it, they'llbe there for us."

"From the standpoint of not only myself but Claudine, we feel thedeath penalty is appropriate in this case, knowing that won't bringour child back. Knowing there's no such thing as closure. Knowingthat justice has been done. We don't feel that way yet," said Ryce,of Vero Beach.

Although McAndrew understands the feeling of the victims' families,the executions he witnessed still haunt him.

Schwab's will be the first execution since former Gov. Jeb Bush put amoratorium on executions in 2006 pending a U.S. Supreme Court rulingon lethal injection. The court ruled recently that lethal injectionis not cruel and unusual punishment.

McAndrew, a slow-spoken activist, grows agitated when talking aboutlethal injection and the likelihood that executions will resume inFlorida.

The most recent inmate executed by lethal injection, Angel Diaz, tookmore than 30 minutes to die because the needles had been pushedthrough his veins into his flesh.

But none of the 26 witnesses on the other side of the glass windowlooking into the execution chamber knew that because, when thecurtains behind the window were opened, Diaz was already on a gurneywith IVs in his arms.

"If they're going to be honest and forthcoming about what's going onin the death chamber, then from the second the condemned walks intothe chamber until the body is placed in a body bag, all 26 witnessesshould be there," McAndrew said.

Opponents welcome an insider's voice

Other death penalty opponents tell him that he's an invaluable resource.

"They say only someone who's been that close to it can speak about itin the way that you do," McAndrew said, his voice growing soft.

The former Air Force sergeant began his career in corrections afterreturning to the United States following a 15-year stint living andtraveling throughout France and Asia as a manager for aninternational exporter.

He never imagined then that, less than two decades later, he would bethe warden of one of the state's toughest institutions, landing in1996 at Florida State Prison.

There, he oversaw three executions in the electric chair: John EarlBush, John Mills Jr. and Medina.

His first experience, Bush's execution, was uncomfortable, he said.Bush had killed 18-year-old Frances Slater after abducting her from aStuart convenience store.

The members of the execution team told the warden that it was atradition to have breakfast at Shoney's after the early morningexecutions.

"I got to Shoney's and the food started looking very disgusting,"McAndrew said. "At the table directly in front of me, I could see theback of the female attorney (for Bush). She turned and looked overher shoulder at me. She had a look of pain on her face."

He left without eating.

'I'd had all the breakfast I could stand'

Starke is a small town with a population of about 5,500 people, mostof whom work at the nearby prison, have retired from there or havefamily members who do.

Everyone at the restaurant knew the group had performed the execution.

What troubled McAndrew was that the public might misconstrue thebreakfast as celebratory.

Before the next execution, McAndrew spoke with the colonel on theteam: "I told him I'd had all the breakfast I could stand."

Paul Schauble Jr. spent more than a decade as a Death Row officer,taking condemned inmates to showers and recreation and deliveringtheir meals.

He doesn't have any qualms about the job he performed for 12 years.

"Most of us believe we have a job to do. And whether I believe theyare innocent or deserve their punishment, my job is to make sure theystay inside the fence and I take care of all their needs and then Igo home," Schauble said.

Although he didn't enjoy it, he believes that the prisoners he tendedto deserved to die because their crimes were so egregious and theircourt appeals, over and over again, had been exhausted. He has beenthe target of Death Row inmates' wrath. He has been hit with fecesand bricks, been gouged and stitched up.

The union representative of the Police Benevolent Association doesn'thave a lot of sympathy for the prisoners.

"By the time they get on Death Row, the investigation is soextensive ... I truly believe they are guilty of that crime,"Schauble said.

Before dawn on the day of the execution, McAndrew would sit on theside of the inmate's bunk and read the death warrant aloud afterexplaining that he was required to do so by state law.

"You ask them if there's anything you can do for them. If there's anyphone call you'd like me to make, I'll be glad to do that," McAndrewsaid.

Those last moments alone with the person whose death he was about tofacilitate haunt him.

"They share things with you in those last moments too, things thatyou'll never talk about again," he said.

The Florida Supreme Court, in a unanimous decision Friday, denied Schwab's appeal. Schwab, a child rapist and killer, now heads to the U.S. Supreme Court as the last stop before his scheduled lethal injection. The Florida high court affirmed a Brevard County circuit court that denied Schwab a full hearing on the constitutionality of Florida's death-sentence procedures. One of Schwab's attorneys, Peter Cannon of the Capital Collateral Regional Counsel, said the case is poised for a U.S. Supreme Court challenge. He said he and co-counsel Mark Gruber and Daphney Gaylord contend that Florida's mix of chemicals, training methods and physical procedures do not comply with the U.S. Supreme Court's rulings in an April case that set lethal-injection standards. "We're exactly where we should be now," said Cannon. "It's up to the U.S. Supreme Court to decide if Florida is doing it right or not doing it right." State Attorney General Bill McCollum said precedent is on Florida's side. "Based on the litigation that has occurred thus far, I stand by our belief that the procedures used to carry out lethal injection in Florida are constitutionally sound and the decisions made by the state and federal courts, as well as the U.S. Supreme Court, have been correct," McCollum said. Schwab was sentenced to death July 1, 1992, for the abduction, sexual assault and murder of Junny Rios-Martinez, 11, of Cocoa. Scwhab's execution would be Florida's first since December 2006 when a botched lethal injection led to a state-imposed moratorium, since lifted. Schwab's November execution was delayed by a U.S. Supreme Court review of lethal injection in a Kentucky case.

"Killing someone because they killed only perpetuates violence and coarsens the public’s attitude about the sanctity of life"TALLAHASSEE, Florida (Zenit) - Nine bishops of Florida sent a letter to Governor Charlie Crist urging him to stop executions in Florida, beginning with the scheduled execution of Mark Dean Schwab next week.

"We can never fully comprehend the pain the victim’s family feels after losing their loved one and we extend our sincere sympathy to the family of Junny Rios-Martinez, the victim in this crime," the bishops acknowledged in the note sent Wednesday.

Schwab was convicted in 1992 of raping and killing 11-year-old Junny Rios-Martinez. He is scheduled to die by lethal injection Tuesday evening.

"But killing someone because they killed only perpetuates violence and coarsens the public’s attitude about the sanctity of life, including the lives of those who have committed grave offenses," they added.

The bishops' letter acknowledged the right of the state to impose the death penalty, but urged the governor "to join the growing number of states who are re-examining the death penalty as a means of punishing those convicted of capital offenses."

The prelates explained: "In 1991, a Florida Supreme Court study commission found 'the application of the death penalty in Florida is not colorblind.' Almost 10 years later, the Governor’s Task Force on Capital Cases recommended reforms, many of which have not been implemented.

"As recently as 2006, the Florida Death Penalty Assessment Team, working with the American Bar Association, released their report citing serious problems in Florida’s death penalty system. The recurring question of innocence, the exorbitant cost, the inconsistency in sentencing, and the capriciousness of who is executed, each calls for re-examination."

New standard

"You can set a new standard of respect for life in Florida, turning away from execution and imposing a life sentence without possibility of parole for Mark Dean Schwab," the bishops told Goverenor Crist. "Incarceration allows the wrongdoer the possibility of conversion and the ability to make public restitution for crimes through life imprisonment."

"As we pray for Junny Rios-Martinez and his family," the note said, "we pray also for you, as well as for those on death row, that we all will acknowledge God as the Lord of Life, and that we all may learn, not only to obey the commandment not to kill human life, but also to revere it."

The letter was signed by Archbishop John Favalora of Miami, Bishop Victor Galeone of St. Augustine, Bishop Robert Lynch of St. Petersburg, Bishop Thomas Wenski of Orlando, Bishop John Ricard of Pensacola-Tallahassee, Bishop Gerald Barbarito of Palm Beach, Bishop Frank Dewane of Venice, and auxiliary bishops Felipe Estevez and John Noonan, both of the Archdiocese of Miami.

Friday, 27 June 2008

In a reactionary political calculation, Barack Obama comes out in support of the death penalty for child rape.

What a difference a general election makes.

Hours after the Supreme Court handed down a ruling banning the death penalty for the rape of a child, Democraticcandidate Barack Obama found his inner Scalia and declared it a miscarriage of justice.

"I have said repeatedly that I think that the death penalty should be applied in very narrow circumstances for the mostegregious of crimes," he told reporters at a press conference in Chicago. This is true. Despite the assumptions of someof his admirers, for at least as long as he has held political ambitions, Barack Obama has positioned himself as asupporter of state-sanctioned murder.

There's no question the sexual assault of a child is a monstrous thing, the kind of utterly indefensible crime that cantest the resolve of anyone who opposes the death penalty on moral grounds. Indeed, it is the sort of offense deathpenalty supporters reach for in arguing for the "ultimate sanction." For a political candidate, it's a particularly easyposition to take. What kind of a person would attack you for saying a child rapist deserves to die?

In fact, in the recent history of the death penalty, calling for the execution of a person who commits a crime otherthan murder is a radical stance. Nobody has been executed for such an offense in the United States in over 40 years.Until yesterday, only two people out of more than 3,200 prisoners on death row faced execution for a crime in whichthe victim did not die. Affirming the death penalty for child rape would not only have potentially placed thousandsmore people on death row -- as Justice Anthony Kennedy noted yesterday, there were 5,792 rapes of children under12 in 2005 alone -- it would have vastly broadened the net for capital crimes, a trend that would quickly become aslippery slope. Nevertheless, "I think that the rape of a small child, 6 or 8 years old, is a heinous crime," Obama saidyesterday, "and if a state makes a decision that under narrow, limited, well-defined circumstances the death penalty isat least potentially applicable, that that does not violate our Constitution.

" Never mind cruel and unusual punishment.(And yes, that is Obama embracing the conservative mantle of states' rights.)

Obama's defenders may argue, as they do about his other recent shifts to the right, that he had to take this position inorder to strengthen his candidacy. No, he didn't. The Democrats may continue to operate in a world in whichopposition to the death penalty equals political death, a world shaped by that famous 1988 Dukakis moment, inwhich the Democratic presidential candidate was hapless when challenged to state that he would support the killing ofa man who raped and murdered his wife. But times have changed. While the Democrats have embraced the deathpenalty, public support for it has dwindled -- especially in recent years. The regular exonerations of innocent prisonersin this country (218 and counting), persistent evidence of rampant racial and economic bias, and botched executionsnationwide have led people -- and juries -- more and more, to reject the death penalty. Chalk it up, as the SupremeCourt likes to, to our "evolving standards of decency."

Unfortunately, presidential candidates have their own evolving standards of decency and, too often, they are a race tothe bottom. Obama, who spoke eloquently in favor of the court's decision granting habeas corpus to prisoners atGuantanamo Bay, has now aligned himself with the same aggressively conservative justices who would have had themremain in legal limbo. Worse, he aligns himself with the belligerent Antonin Scalia, whose enthusiasm for the deathpenalty is so irrepressible, one would expect he'd administer the lethal chemicals himself if he could.

Informed voters will see Obama's move for what it is: an opportunistic embrace of a sharply right-wing stance to shedthe (dubious) stigma of being "the most liberal senator" in the Congress. In a week that saw him backpedal on theForeign Intelligence Surveillance Act and on free trade, his supporters may see this as just another move rightward inhis path toward the White House. But this is more than that. This is a reactionary stance that betrays those who wouldbe his natural base of support, not to mention those communities that are actually affected by the death penalty. Thefact that Obama was speaking at a press conference in Chicago is especially painful. It is a city that, as we speak, ishanding subpoenas to police officers who tortured African American men on the South Side into giving confessionsfor crimes that they didn't commit -- men who ended up on death row. Obama, famously, was an organizer on theSouth Side of Chicago in this era. He knows how the death penalty system really works. He's just choosing to ignore itfor the sake of cheap political points. How much he will actually gain from his pro-death penalty proclamation isunclear. Is it more than he stands to lose?

It is a sad day when a candidate who so many genuinely saw as bringing "change we can believe in" takes a politicallymotivated and intellectually dishonest stance in a matter of life and death. Obama risks alienating those who gave himhis rise to the top, by betraying the very ideals that attracted them to him in the first place.

TALLAHASSEE -- Attorney General Bill McCollum told the Florida Supreme Court today that executions don't have to be totally painless.

"Avoidance of the possibility of any pain is neither possible nor required under the Constitution," said the state's brief in an appeal by convicted child killer Mark Dean Schwab, who is set to die next Tuesday. "If unconscious, as Schwab assumes he will be, there can be no risk of pain, let alone a 'substantial risk'...."

Attorneys for Schwab argued that Florida's newly revised lethal-injection methods don't comply with U.S. Supreme Court rulings on cruel and unusual punishment. They asked the high court to return Schwab's case to a Brevard County court for a full evidentiary hearing on his claims that there are better ways to do it.

The state Supreme Court is going through the last legal maneuvers involving the legality of the new lethal-injection methods in preparation for Florida's first execution since the December, 2006, death of Angel Diaz -- which took far longer than planned, because a needle missed its mark. The Department of Corrections has extensively revised the methods and trained execution teams since then.

The state's reply brief said Schwab, convicted in 1992, has had ample time to raise all possible objections -- and that he had, in fact, already litigated some of the claims his attorneys are raising now. It also said that "the mere possibility of a malfunction" in the lethal-injunction equipment or dosages of three chemicals did not rise to the level of a constitutional claim.

In appealing to the Supreme Court, Schwab's attorneys said the circuit court in Brevard denied Schwab's claims in a hearing this week. His three-lawyer defense team from the state's Capital Collateral Regional Counsel asked the seven justices to order a full evidentiary hearing.

Schwab was sentenced to death July 1, 1992, for the abducting, sexually assaulting and killing Junny Rios-Martinez, 11, of Cocoa.

Scwhab's execution would be Florida's first since December 2006 when a botched lethal injection led to a state-imposed moratorium, since lifted. Schwab's November execution was delayed by a U.S. Supreme Court review of lethal injection in a Kentucky case.

COMES NOW the State of Florida, and moves this Court to strike "Exhibit A" to Schwab’s Initial Brief. As grounds for granting this motion, the State submits the following:

1. "Exhibit A" purports to be the lethal injection procedures utilized in the State of Kentucky. This exhibit was not attached to Schwab’s third successive post-conviction relief motion, and was never a part of the circuit court proceedings.

2. It is inappropriate to attempt to present "evidence" for the first time on appeal. That is what Schwab is attempting to do, and that practice is improper.1

3. "Exhibit A" should be stricken because it was not a part of the proceedings below. Likewise, all references to that exhibit should be stricken from Schwab’s brief.

Respectfully submitted,

1 The State notes that Schwab attempted to add "evidence" under the guise of a notice of supplemental authority in Case number SC07-2138. That filing was stricken on May 21, 2008.

TABLE OF CONTENTS...............................................i TABLE OF AUTHORITIES...........................................ii STATEMENT OF THE CASE...........................................2 STANDARD OF REVIEW..............................................5 SUMMARY OF ARGUMENT.............................................5 ARGUMENT........................................................8THE LOWER COURT ERRED WHEN IT SUMMARILY DENIED MR. SCHWAB’SCHALLENGE TO FLORIDA’S LETHAL INJECTION PROCEDURES ANDPROFICIENCY OF THE FLORIDA DEPARTMENT OF CORRECTIONS INADMINISTERING LETHAL INJECTIONS IN CONFORMITY WITH THE SIXTH,EIGHTH, AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AS INTERPRETED BY THE UNITED STATES SUPREME COURT INBAZE V. REES AND CORRESPONDING PROVISIONS OF THE FLORIDACONSTITUTION

On July 18, 2007, a death warrant was signed for Schwab with a scheduled execution date of November 15, 2007. Schwab filed aSuccessive Motion to Vacate Sentence and Stay Execution in thecircuit court on August 15, 2007 challenging the constitutionalityof Florida’s lethal injection procedure and that newly discoveredmitigation evidence of neurological brain damage made his sentenceof death unreliable. After a case management hearing, the circuitcourt denied relief. Specifically, the circuit court found thatFlorida’s lethal injection procedures did not violate the Constitution and that the newly discovered evidence of neurological brain damage was procedurally barred. On November 1, 2007, thisCourt affirmed the denial of all relief. Schwab v. State, 973

So.2d 427 (Fla. 2007). On November 7, 2007, this Court denied Schwab’s Motion for Rehearing and Renewed Motion to Stay Executionand the mandate was issued.

On November 8, 2007, Schwab filed an application for leave tofile a successive habeas corpus petition pursuant to 28 U.S.C.§2244(b) with the Eleventh Circuit Court of Appeals. On November9, 2007, the Eleventh Circuit denied the application. In theCircuit Court’s denial, the order stated: “this claim cannot serveas a proper basis for a second or successive habeas petition”. TheEleventh Circuit noted that since Hill v. McDonough, 126 S.Ct. 2096(2006), a §2254 proceeding is no longer the appropriate way to raise a method of execution claim. Instead, the proper vehicle forsuch a claim is a 42 U.S.C. §1983 claim. In re Schwab, 506 F.3d1369 (11th Cir. 2007).

On November 9, 2007, Schwab filed a Second Successive Motionto Vacate Sentence and Stay Execution in the circuit courtchallenging Florida’s method of execution and that newly discoveredevidence would establish that Schwab’s sentence of death isunreliable in light of Dr. William Samek, a key state witness,clarification of his original trial testimony. On November 13,2007 after a case management hearing, the lower court summarily denied relief which was affirmed by this Court on January 24, 2008. Schwab v. State, --- So.2d ---, 2008 WL 190575 (Fla. 2008),

rehearing denied May 21, 2008.

On November 9, 2007, Schwab also filed a Petition to StayExecution in the United States Supreme Court in light of theCourt’s grant of certiorari in Baze v. Rees. The US Supreme Courtgranted a stay of execution on November 15, 2007 and deniedcertiorari May 19, 2008, which effectively dissolved the stay ofexecution. Schwab v. Florida, ---S.Ct. ---, 2008 WL 953622 (2008).On May 20, 2008, the Governor rescheduled Schwab’s execution datefor July 1, 2008.

On June 20, 2008, Schwab filed a Third Successive Motion toVacate Sentence and Stay Execution challenging Florida lethalinjection procedures in light of Baze v. Rees which clarified thelegal standard to be applied in a review of challenges to lethalinjection procedures under the Eighth Amendment to the UnitedStates Constitution. On June 24, 2008, the circuit court conducteda case management hearing and summarily denied relief by Orderdated June 25, 2008. Schwab filed a timely notice of appeal of the circuit court’s Order on June 25, 2008.1

STANDARD OF REVIEW

Florida Rule of Criminal Procedure 3.850(d) provides that adefendant is entitled to an evidentiary hearing on postconviction

1 Exhibits listed in the brief are the exhibits submitted with the Motion to Vacate filed with the lower court on June20, 2008. Exhibit “A” is attached to this brief which are the Kentucky lethal injection protocols.

claims for relief unless Athe motion, files, and records in the case conclusively show that the movant is entitled to no relief.@ Florida Rule of Criminal Procedure 3.851(f)(5)(B) applies the same standard to successive postconviction motions in capital cases. In reviewing a trial court's summary denial of postconviction relief without an evidentiary hearing, this Court Amust accept allallegations in the motion as true to the extent they are notconclusively rebutted by the record.@ Hodges v. State, 885 So.2d338, 355 (Fla.2004) (quoting Gaskin v. State, 737 So.2d 509, 516(Fla.1999)). ATo uphold the trial court's summary denial of claimsraised in a 3.850 motion, the claims must be either faciallyinvalid or conclusively refuted by the record.@ McLin v. State, 827 So.2d 948, 954 (Fla.2002) (quoting Foster v. Moore, 810 So.2d 910,914 (Fla.2002)).

SUMMARY OF ARGUMENT

Florida’s method of execution creates a substantial risk ofserious harm as interpreted by the United States Supreme Court inBaze. First, this Court must decide this case in light of Bazewhich superceded this Court’s prior precedent establishing astandard of review for method of execution cases. Second, a facialreview of the Florida and Kentucky Protocols reveal that they aresubstantially different. Finally, Florida’s implementation of itsexecution protocols create a substantial risk of serious harm.

ARGUMENT

THE LOWER COURT ERRED WHEN IT SUMMARILY DENIED MR. SCHWAB’S CHALLENGE TO FLORIDA’S LETHAL INJECTION PROCEDURES AND PROFICIENCYOF THE FLORIDA DEPARTMENT OF CORRECTIONS IN ADMINISTERING LETHALINJECTIONS IN CONFORMITY WITH THE SIXTH, EIGHTH, AND FOURTEENTHAMENDMENTS OF THE UNITED STATES CONSTITUTION AS INTERPRETED BY THEUNITED STATES SUPREME COURT IN BAZE V. REES AND CORRESPONDINGPROVISIONS OF THE FLORIDA CONSTITUTION.

I. The Baze Decision

On April 16, 2008, the United States Supreme Court issuedits plurality opinion in Baze v. Rees, No. 07-5439, (April 16,2008). The Supreme Court in Baze attempted to define thestandard applicable to method of execution cases. Due to thenature of the Baze opinion, no clear standard was affirmativelyadopted by a majority of the Court. In fact, four standardsemerged from the various opinions with only two having at least three justices joining. In an opinion by Chief Justice Roberts,joined by Justices Kennedy and Alito, the three members of theCourt proposed that the proper standard should be a “substantialrisk of serious harm”. Baze v. Rees, Slip Op. at 10-11 (Opinionof Roberts, C.J.)(hereinafter “Baze decision”). Further, thisthree-justice opinion requires an additional showing by a“condemned prisoner” for a stay of execution of a comparison between the challenged execution procedures and “known andavailable alternatives”. Id. at 22. Three other Justices,

The Chief Justice’s opinion is perhaps the one to be adoptedby the lower courts. This opinion explains the standard whichshould be applied by the lower courts:

Our cases recognize that subjecting individuals to a risk offuture harm-not simply actually inflicting pain-can qualifyas cruel and unusual punishment. To establish that suchexposure violates the Eighth Amendment, however, theconditions presenting the risk must be “sure or very likely to cause serious illness and needless suffering,” and giverise to “sufficiently imminent dangers.” … We have explainedthat to prevail on such a claim there must be a “substantialrisk of serious harm,” an “objectively intolerable risk ofharm” that prevents prison officials from pleading that theywere “subjectively blameless for purposes of the EighthAmendment.

Baze v. Rees, Slip Op. at 10-11 (Opinion of Roberts, C.J.)

Additionally, the United States Supreme Court now requiresan additional evidentiary showing for Mr. Schwab in order toobtain a stay of execution. The Supreme Court now requires thatMr. Schwab proffer alternatives that effectively address asubstantial risk of serious harm. Further, the Court stated that“the alternative procedure must be feasible, readily implemented,and in fact significantly reduce a substantial risk of severepain.” Baze v. Rees, Slip Op. at 13.

II. The Florida Standard

This Court’s January 24th, 2008, opinion articulated thestandard of review relied upon by this Court in reviewing method ofexecution cases. In denying relief, this Court stated:

The Standards announced in Baze squarely conflict with thestandard relied upon by the Court in the January 24th, 2008, opinionin which it reviewed Mr. Schwab’s claim under a conflated“unnecessary and wanton pain” and “inherent cruelty” standard.

The government in its answer to the motion to vacate filed inthe lower court asserted that since this Florida standard is lowerthan the one announced in Baze, Mr. Schwab would not be able toprevail. (Answer to Third Successive Motion to Vacate andOpposition to Stay of Execution, State v. Schwab, Brevard County

2 The Order states incorrectly that the defendant argued that “Baze sets a different and higher Eighth Amendmentstandard than Lightbourne”. Order at 3. This is entirely incorrect as shown in the transcripts from the CMC at 7.

Case No. 91-7249-CF-A, filed June 23rd, 2008 at 16-18)(hereinafter “answer motion”). Additionally, the government argues that sincethe Lightbourne decision “analyzed” the DOC protocols under severalstandards, Mr. Schwab would not be able to obtain relief. (answermotion at 12-13) This Court in Lightbourne stated:

Alternatively, even if the Court did review this claim under a "foreseeable risk" standard as Lightbourne proposes or "anunnecessary" risk as the Baze petitioners propose, welikewise would find that Lightbourne has failed to carry hisburden of showing an Eighth Amendment violation. As stressedrepeatedly above, it is undisputed that there is no risk ofpain if the inmate is unconscious before the second and third drugs are administered. After Diaz's execution, the DOC addedadditional safeguards into the protocol to ensure the inmatewill be unconscious before the execution proceeds. In light ofthese additional safeguards and the amount of the sodiumpentothal used, which is a lethal dose in itself, we concludethat Lightbourne has not shown a substantial, foreseeable or unnecessary risk of pain in the DOC's procedures for carryingout the death penalty through lethal injection that wouldviolate the Eighth Amendment protections.

The lower court in its order denying relief, relied upon this comparative analysis. (Order Denying Defendant’s Third SuccessiveMotion to Vacate or Stay Execution, State v. Schwab, Brevard CountyCase No. 91-7249-CF-A, filed June 25, 2008, at 3-4) (hereinafter“Order”).2 Both the government and the lower court erred inreaching this conclusion.

Until the Baze decision, the United States Supreme Court

hadn’t decided a case for one-hundred and thirty years involving methods of execution. During this time, the various courtspresented arguably eight different standards of review. Forexample the Ninth Circuit Court of Appeals utilized an“unnecessary risk of unconstitutional pain or suffering”standard. See Cooper v. Rimmer, 379 F.3d 1029, 1033 (9th Cir. 2004). The Sixth, Eighth and Tenth Circuits relied upon anarrower standard of “unnecessary and wanton infliction of pain”.See Hamilton v. Jones, 472 F.3d 814, 816 (10th Cir. 2007);accord, Taylor v. Crawford, 2007 WL 1583874, *6 (8th Cir.);Workman v. Bredesen, 486 F.3d 896, 906-07 (6th Cir. 2007). Forexample, regarding the confusion involving these standards, theUnited States Court of Appeals for the Sixth Circuit stated thata method of execution is cruel and unusual punishment when itinvolves the “unnecessary and wanton infliction of pain,” butcould not resolve the difficulty of figuring out how the U.S.Supreme Court intended for the cruel and unusual punishment testto be applied to method of execution cases, noting that thisCourt “has considered three [method of execution] challengesunder the Eighth Amendment, only one of which reached the merits,” and since then “has had ample opportunities to constrain methods of execution that seem to raise far greater risk of crueland unusual punishment than lethal injection, but it has declined

to do so.” Workman, at 906-07 (6th Cir. 2007).

The question presented by the Petitioners in Bazearticulated the standards which were at issue:

Does the Eighth Amendment to the United States Constitutionprohibit means for carrying out a method of execution thatcreate an unnecessary risk of pain and suffering as opposedto only a substantial risk of the wanton infliction of pain?

Neither standard presented to the U.S. Supreme Court in Baze isthe standard relied upon by this Court in the Schwab II decision.Nor can it be determined whether the Schwab II standard is “lower”or “higher” than the Baze standard because it is a conflation ofseveral standards with broad and narrow applications. Likewise, thestatement in Lightbourne regarding a “substantial, foreseeable orunnecessary risk of pain” are inapplicable because this is not thestandard utilized by this Court in Schwab II nor is it a correctformulation of the Baze standard.

Finally, it is impossible to guess whether this Court utilizeda narrow or broad interpretation of the standard in Schwab II simplybecause this Court offers no analysis, nor does it offer anysatisfactory analysis in the Lightbourne decision.

III. Facial Comparative Analysis of the Florida and KentuckyProtocols

The Baze plurality opinion stated that “A State with alethal injection protocol substantially similar to the protocol

we uphold today would not create a risk that meets thisstandard.” Baze, at 22. By its own language, it is clear thatthe Baze Court’s opinion was only a facial review of the Kentuckyprotocols. This comparative analysis has never been requiredbefore by the High Court or this Court. In his Motion to Vacate,Mr. Schwab presented the report of Ms. Arvizu as exhibit 8 to themotion which outlined a comparative analysis of the two states.

A comparative review of the Florida and Kentucky protocolsfinds that they are not substantially similar. Based on a facialreview of the protocols, Ms. Arvizu concluded that Florida’sprotocols were deficient in many important respects:

Despite the fact that the Florida procedure has thepotential to function as a better means of controlling andensuring the acceptability of an execution, its potential isunrealized. It suffers from a number of serious deficienciesand inconsistencies (as identified in my letter to your attention, dated August 14, 2007) that render it ineffectivein achieving its goal of controlling the execution processto achieve an acceptable result.

In contrast, despite the fact that the Kentucky protocolprovides relatively little detail, it addresses issues thathave the potential to cause critical failure of theexecution process, but that are not addressed in the Floridaprocedure.

The lower court in its Order finds that the Florida andKentucky protocols are substantially similar. Order at 15. This

despite the fact that the lower court admits in its order thatthe Kentucky protocols themselves were not in evidence. Order at6, 13. While it is legally inconceivable how a court can decidean issue of fact without the actual evidence before it, the lowercourt’s finding that the two protocols are substantially similarare errors of fact and thus an abuse of discretion. See Williamsv. State, 967 So.2d 735 (Fla. 2007); Cox v. State, 966 So.2d 337(Fla. 2007). For example, the lower court states that Kentucky and Florida are substantially similar even though Kentuckyutilizes 3 grams of sodium pentothal and Florida uses 5 grams.Order at 13-14. Casting further doubt on the lower court’sfactfinding ability, it states that Florida utilizes “480millieqivalents” of potassium chloride. This is clearly wrongsince Florida uses half that amount. Order at 14. Most of the other procedures cited by the lower are irrelevant to thisanalysis. Of the seven procedure examples, only the ones inparagraphs 1, 3, and 6 can be considered of consequence (again,with the finding regarding paragraph 1 being wrong). The factthat the executions in both states use saline between injections(¶ 2), take place in “an execution chamber” (¶ 4), deliver the drugs remotely (¶ 5), or utilize a heart monitor (¶ 7), are notrelevant to a Baze analysis. Rather, as pointed out in theArvizu report, the differences between the two protocols are more

substantial than the meaningless similarities cited by the Court.

One example cited in the Arvizu report addresses asubstantial difference between the Kentucky and Florida trainingexercises. The Baze decision discussed in great length thisissue of proper IV placement, the issue that lead to the eventsof the Diaz execution. Baze, Slip Op. at 15. The Baze Courtdiscussed Kentucky’s training procedure in this area:

Moreover, these IV team members, along with the rest of theexecution team, participate in at least 10 practice sessionsper year. These sessions, required by the written protocol,encompass a complete walk-through of the executionprocedures, including the siting of IV catheters into volunteers.

Baze, Slip Op. at 16 (record citation omitted, emphasis added).

Kentucky trains the IV team by “siting” or placing the linesinto a person. (exhibit “A” at 984). Florida does not, eventhough improper IV placement was major cause of the problemsduring the Diaz execution. Florida’s substandard training of thetechnical team members responsible for gaining IV access createconditions that present a risk of harm which is “sure or verylikely to cause serious illness and needless suffering,” and giverise to “sufficiently imminent dangers.” Id. at 10-11.

The lower court did not find this a substantial differencesince Florida requires “appropriate certification”. Order at 7.This is an incorrect analysis since Kentucky does concededlyhave a similar requirement. (Exhibit “A” at 984). The

difference being the quality of training these certified team members participate in prior to an execution.

The lower court also makes a clear error of fact whendiscussing the medical assessment of the inmate prior to anexecution. The court states that the Florida protocol providesan extra safeguard apparently not in the Kentucky procedure as itrequires that, one week prior to the execution, an assessment ismade of the defendant to determine appropriate IV access. Orderat 8. This is entirely incorrect as noted both by Ms. Arvizu and the Kentucky protocols. In fact, the first five pages of theKentucky protocols outline a very detailed procedure forthoroughly examining the inmate, including an examination sevendays prior to an execution (exhibit “A” at 973) and continuingobservation for any changes in medical or psychiatric condition.Id. at 974. Florida, on the other hand, requires only a“limited” medical examination. See exhibit 8.

Mr. Schwab was not granted an evidentiary hearing on thismatter. Since the lower court summarily denied the motion, thefacts asserted must be accepted as true by this Court.Furthermore, this comparative analysis is not a question of law.It requires factfinding that was not afforded to Mr. Schwab.

IV. Comparative of the Kentucky Protocols and The FloridaProtocols as Implemented by the Department of Corrections.

Furthermore, the recently received DOC training session

notes and the prior training notes from July and August of 2007, also show that the Florida protocols are not substantiallysimilar to the Kentucky Protocols. While a proper Baze analysisconcerns a facial comparison, a comparative review of Kentuckyand how Florida implements its execution protocols was addressedby Ms. Arvizu. She states in her report:

The problems identified through review of Florida’s trainingrecords are more readily apparent in comparison to therelevant provisions of the Kentucky protocol. Florida’straining records document the nature and scope of thecontingencies that have been addressed during training. The substantive contingencies that have been addressed duringtraining are largely limited to blocked lines. Duringpractice exercises, Florida has not addressed some of thecontingencies that have been experienced in past Floridaexecutions or that have the potential to compromise the execution process (e.g., execution duration of >12 minutes,or an inability to site the IV lines within more than anhour); requirements for addressing these seriouscontingencies are explicitly addressed in the Kentuckyprotocols.

Based on the recently received training records, Florida hasnot provided training to address an inmate’s known medicalproblems. In contrast, the Kentucky protocol is designed toensure that the inmate’s recent, and potentially changingmedical and psychiatric condition is well documented inadvance of the execution.

See exhibit 8.

Again, it is clear that the DOC is not training in a mannerthat is consistent with the standards announced in Baze.

V. Florida Department of Corrections Execution Training

Assuming arguendo that Florida’s protocols are facially similarto those in Kentucky, one question must be addressed by this Court:whether the implementation of a facially valid execution protocol

in a manner creating a substantial risk of serious harm violates the Eighth Amendment. Mr. Schwab states that it does based on the below arguments.

On December 13, 2006, the execution of Angel Diaz createdconcerns whether Florida’s lethal injection protocols were beingadequately implemented by the Florida Department of Corrections. Asa result, then Governor Jeb Bush created the Governor’s Commissionon the Administration of Lethal Injection to review the method inwhich the lethal injection protocols are administered by theDepartment of Corrections (“DOC”) and to make findings andrecommendations as to how administration of the procedures andprotocols can be revised. As found by the Governor’s Commission on Administration of Lethal Injection (“GCALI”) in its final report, inadequate training was a major contributing factor leading to the events of the Diaz execution. To reduce the risk of these events recurring, GCALI determined that better and proper training of theDOC execution team was required. (exhibit 3) The DOC, pursuant tothe newly revised protocols of May, 2007, conducted several trainingsessions for the execution team. These initial training sessionsincluded both the DOC execution team members and observers from theFlorida Department of Law Enforcement (“FDLE”)(exhibit 4).

As previously noted before this Court, Mr. Schwab obtained theservices of Janine Arvizu, a certified quality auditor, to review

3 The definition of a “failed exercise” for the purposes of this analysis has several key aspects. First, a failure doesnot encompass an exercise where the error or errors would result in “some risk of pain”, Baze, at 8, or an “isolatedmishap”. Id. at 11. A failed exercise would encompass a substantial error where an Eighth Amendment violationwould be presented or where the error shows objective evidence that the achievement of significant learning

the protocols and session notes. After a review of the notes taken during the mock executions, it was determined that two of the fiveJuly 2007 mock executions resulted in failed exercises.3 This wasan error rate of 40%. This continued level of training would resultin a probability of eight failed “exercises” for every twentypractice executions and sixteen failed exercises for every fortypractice executions. This is shown in exhibit 14, Table 1a.

As a result of the Lightbourne litigation, the DOC revisedtheir protocols which were effective August 1, 2007. The executionprocess remained the same except for the inclusion of an extra stepto “assess consciousness” just prior to the injection of the secondchemical. Using these revised protocols, the DOC conducted sevenmock executions. (exhibit 4) Again, based on these training sessionnotes, it was determined that two of the seven August 2007 mockexecutions resulted in failed exercises. This is a 29% error rate.This continued level of training would result in a probability ofsix failed exercises for every twenty practice executions and twelvefailed exercises for every forty practice executions. These August training notes were not addressed in Mr. Schwab’s prior motion for relief. This is shown in exhibit 14,Table 1b.

Combining July and August, there were twelve trials in which

objectives were not obtained.

four were failed exercises. This is a 33% error rate with a probability of seven failed exercises for every twenty practice executions and thirteen failed exercises for every forty practice executions. This combined analysis is shown in exhibit 14, Table1c.

On May 27th, 2008, Mr. Schwab filed a renewed records requestfor the DOC training session notes for the period between September,2007, to the present. This Court granted the motion and the DOCrecords were received on June 16, 2008. These records indicate thatbetween September, 2007 and May, 2008, the DOC conducted thirtytraining exercises. Again, after review of these records, Ms.Arvizu found significant training failures. (exhibit 8). Therecords indicated that nine of the thirty exercises were failures resulting in an error rate of 30%.

VI. Prior Florida Executions

Objectively, the data from the DOC training sessions and dataobtained from Florida’s prior twenty lethal injection executions arerelevant to show a substantial risk of harm. In Baze, the Courtdistinguished between two types of error:

In terms of our present Eighth Amendment analysis, such a situation-unlike an “innocent misadventure,” -woulddemonstrate an “objectively intolerable risk of harm” thatofficials may not ignore. In other words, an isolated mishapalone does not give rise to an Eighth Amendment violation,precisely because such an event, while regrettable, does not

4 “Iatrogenic” is defined as being “induced inadvertently by a physician or surgeon or by medical treatment.”

suggest cruelty, or that the procedure at issue gives rise toa “substantial risk of serious harm.”

Baze, Slip Op. at 11-12 (citations omitted, emphasis added).

This objective analysis based on the data discussed infra establish that these errors are not “isolated” mishaps but, instead,reoccurring errors in both training and past executions.

Florida’s prior lethal injection execution data were collectedin order to focus on three major areas of concern 1) technicalissues, 2) duration issues, and 3) myoclonic observation issues.Specifically, the data set to be included involved the executions bylethal injection conducted in Florida between 2000 and 2006.

a. Florida Technical Issues

Investigation reports conducted by the medical examinerprovided the basis for the data. The only data available were forseventeen of the twenty lethal injection executions conducted duringthis time period. These reports were reviewed for technicalanomalies which included 1) irregular IV placements, along withevidence of iatrogenic manipulation,4 2) surgical incisions for IVaccess, 3) recent multiple needle puncture marks indicating failureto gain IV access at the initial site, and 4) one instance indicating subcutaneous IV insertion. Out of the seventeenexecutions for which data were available, six post-executioninvestigative reports found technical anomalies, or in probability

MERRIAM-WEBSTER MEDICAL DICTIONARY (2005 Ed.).

terms, a 35% error rate with an expected total of fourteen technical anomalies after Florida executes forty individuals by lethalinjection. This is shown in exhibit 14, Table 2.

The existence of past technical anomalies and the highprobability (or certainty) of their occurrence in the futureimplicate deviations in the execution mechanics and show that dueto inadequate training, the execution team is routinely incapableof finding proper IV access without several attempts. While theargument can be made that such problems occur in a clinicalsetting, the fact that the DOC fails 35% of the time indicates a high level of failure due to inadequate training.

Under a Baze analysis, these data establish that Florida is “subjecting individuals to a risk of future harm”. Id. at 10.The Baze decision discussed in great length this issue of properIV placement, the issue that lead to the events of the Diazexecution. Baze, Slip Op. at 15. The Baze Court discussedKentucky’s training procedure in this area:

Moreover, these IV team members, along with the rest of theexecution team, participate in at least 10 practice sessionsper year. These sessions, required by the written protocol,encompass a complete walk-through of the executionprocedures, including the siting of IV catheters into volunteers.

Baze, Slip Op. at 16 (record citation omitted, emphasis added).

Kentucky trains the IV team by siting the lines into a

person. Florida does not, even though improper IV placement was major cause of the problems during the Diaz execution. Florida’s substandard training of the technical team members responsiblefor gaining IV access create conditions that present a risk ofharm which is “sure or very likely to cause serious illness andneedless suffering,” and give rise to “sufficiently imminentdangers.” Id. at 10-11.

b. Florida Duration Issues

Relevant to the Baze standard is the amount of time thatelapses from the start of the lethal injection chemical sequenceuntil death. Evidence about the mechanics of lethal injectionand the pharmacological and pharmacokinetic properties of thechemicals was obtained from the Lightbourne record through thetestimony of the state’s expert Dr. Dershwitz. (exhibit 1)

Based on this evidence, the normal duration of an executionby lethal injection should last no more than eleven minutes.Compared to the duration of prior executions in Florida, ten outof nineteen, or 53%, of Florida’s lethal injection executionsexceeded this time parameter. Further, this trend will continueand after twenty more executions (for a total of forty), there isa statistical certainty that twenty-one executions will exceed the constitutional duration limit. The mean duration for these executions is 13.8 minutes. (exhibit 11) This is illustrated in

exhibit 14, Table 3a.

Applying a t test, where the null hypothesis is true, showsthat 83% of Florida’s future executions will take longer than theeleven minute parameter established through Dr. Dershwitz’stestimony. These findings show that 34% of future executionswill take between 13.79 and 20.12 minutes and 16% of futureexecutions will take more than 20.12 minutes. Finally, the top 25% of Florida’s future executions will take more seventeenminutes. (exhibit 11) Exhibit 14, Table 3b shows the t test andresults.

These data are relevant to a Baze analysis in several respects. First, the execution duration parameter is based on the scientific testimony of Dr. Dershwitz. The foundation of this testimony is the pharmacokinetic and pharmacological properties of the three drugsused in Florida and the weight and volume of their administration.According to this testimony, an execution should take no longer thaneleven minutes. Clearly, this is not the case in Florida since amajority of past executions exceeded this parameter. This meansthat these drugs are being “maladministered” as understood by theBaze Court. It is more probable than not that this error rate isdue to the improper administration of the chemicals because of the35% technical error rate, an error that featured prominently duringthe Diaz execution. Since there is a statistical correlation

5 This issue is fully developed in part III, infra.

6 See exhibit 6. It should be noted that when discussing the pharmacokinetics of the three drugs, the sodiumpentothal reaction time is measured from the start of administration as opposed to the completion of administration forthe other two drugs. See Baze, at 6.

between the training session error rates and past lethal injection error rates, there is no doubt that these errors will continue.

Second, the Baze Court also recognized the notion of “needless suffering” as part of the Court’s Eighth Amendment jurisprudence.See id. at 10-11. The touchstone of “needless suffering” is themechanics of a particular method of execution, See id. at 8, whichwere established by Dr. Dershwitz. Thus the high duration errorrate in past executions objectively shows a “substantial risk” of“unnecessary suffering”.

Third, the choice by Florida to use a large dose of sodium pentathol, as opposed to the smaller doses used by other states,appears to prolong an execution rather than hasten death.5 This isagain supported by the testimony of Dr. Dershwitz concerning thepharmacokinetic properties of sodium pentothal which slow thecirculatory and respiratory systems.6 This leads to a troublingconclusion concerning the “proper administration of the first drug”.Baze, Slip. Op. at 5. Since there are no clinical studies withthis amount of sodium pentothal, the definition of a “proper administration” can only be based on the pharmacokinetic propertiesof the first drug. This, however, creates a conflict: either thetestimony of Dr. Dershwitz is wrong or the drug is being improperly

administered. In other words, “we know not what we do”, or we know what to do but cannot do it right.

c. Florida Myoclonic or Other Observable Movements

The last area of concern involves witness observations duringpast lethal injections of certain involuntary movements, termedmyoclonus, by the prisoner. This term as used here includes spasms,convulsions or other involuntary movements witnessed during theinjection of the lethal chemicals. For the prior twenty lethalinjection executions in Florida, seven, or 35%, had observablemyoclonic events. (exhibit 11) This is shown in exhibit 14, Table 4.

Based on the evidence contained in Lightbourne, these eventsshould not occur during executions by lethal injections. Thesedata show that 35% of Florida’s prior executions include eithercomplications due to the pharmacological properties of thechemicals or inadequate training of the DOC execution team.

Under a Baze analysis, myoclonic observations are relevantfor several reasons. First, the propriety of using pancuronuimbromide was debated by the Baze litigants. The Baze Court foundits use proper:

First, it prevents involuntary physical movements during unconsciousness that may accompany the injection ofpotassium chloride. The Commonwealth has an interest inpreserving the dignity of the procedure, especially whereconvulsions or seizures could be misperceived as signs of consciousness or distress. Second, pancuronium stopsrespiration, hastening death. Kentucky's decision to includethe drug does not offend the Eighth Amendment.

Baze, Slip Op. at 19 (record cite omitted, emphasis added).

While the Baze Court found the state’s interest compelling, Florida’s myoclonic error rate disputes this finding.

Second, the myoclonosis observation is evidence that the DOCis not properly administering the chemicals. If properlyadministered, the pancuronium bromide should prevent involuntaryphysical movements according to the testimony of Dr. Dershwitz.Since his testimony is the only definition of “properadministration” on the record, then it is clear that Florida hasnot met this standard 35% of the time in the past.

Third, this again raises the issue of the “properadministration” of sodium pentothal. The large dose of sodiumpentothal greatly reduces the rate of circulation. Based on thedata, this dose inhibits the progress and efficacy of thepancuronium bromide. This would result in a failures to preventinvoluntary movements and hasten death.

d. Florida Combined Data

Taken together, the data presented above reveals that 40% ofFlorida’s prior lethal injection executions had at least twoshared areas of concern implicating the Eighth Amendment. Sixexecutions had at least two anomalies. Two executions had allthree present (one of which was the execution of Angel Diaz).These results rebut any argument that the errors are “isolated”

since 40% of Florida executions show two or more errors. (exhibit 11) This is shown in exhibit 14, Table 5.

The combined Florida data is relevant to a Baze analysis.The proportion of anomalies that occurred during the reportedtraining period discussed above was 33%. The proportion ofexecutions with two or more anomalies that occurred was 40%.Based on the evidence presented with this motion (see exhibit11), one of Mr. Schwab’s experts calculated whether the difference between these two proportions is statisticallysignificant.

This expert found that it is reasonable to assume (in thiscase with 98% certainty) that the number of anomalies that willoccur in actual executions will be not be significantly lower orhigher in the future real executions than the 33% that wasobserved in the training exercises. (see attachment 11) Based onthe data analysis, the expert’s conclusion is that there is asignificant (and thus legally relevant) relationship between the DOC training error rate and the combined error rate for pastexecutions. Id.

Thus, under a Baze analysis, Florida’s current procedure for executions by lethal injection creates a “substantial risk ofserious harm” by providing data that proves an “objectively

7 It should be noted that in statistics terminology, a “significant relationship” supports evidence for hypothesis.

intolerable risk of harm.”7 Florida’s prior lethal injection procedures created a substantial risk of serious harm thatculminated in the events of the Diaz execution. Based on theabove objective analysis, it is clear that the DOC has notsignificantly reduced this risk. As the Baze Court stated:“subjecting individuals to a risk of future harm-not simply actually inflicting pain-can qualify as cruel and unusualpunishment.” Id. at 10. This is the situation in Florida.

e. The Additional Consciousness Assesment

The only major difference for this analysis between the May2007 protocols and the August 2007 protocols is the addition of aconsciousness assessment between the injection of the first andsecond chemicals. The Florida Supreme Court relied upon thisadded step heavily in its Lightbourne opinion.

However, under a “step error analysis” this addition doesnot decrease the error rate. As with any process, each step of aprocess is dependent upon the prior step being successfullycompleted. The number of steps and the accuracy at each step arerelational in determining the risk of error in any process. Thusthere is a statistical relationship at every step of the processand the more steps there are, a cumulative risk of error based on the number of steps. From a statistical point of view, this only

“Proves” is a legal term applying this evidence.

increases the level of risk. Under the assumption that there are twenty-five steps from insertion of a periphery IV access line upto, but not including, the injection of the second drug (with noconsciousness assessment), the probability of success per stepcan be calculated using three different accuracy values of .95,.97, and .99. When the DOC adds a single step to the process,this statistical example shows a reduction in the probability ofsuccess.

Number ofSteps

95% accuracy

97% accuracy

99% accuracy

26

26%

45%

77%

25

28%

47%

78%

A similar example is shown from the data in sectionVII(a)(2) below with the analysis of Ohio’s error rates. Afterthe execution of Joseph Clark (#21) on May 2, 2006, that featuredproblems with gaining and maintaining IV access, Ohio addedadditional steps to assess the IV lines after the first andsecond chemicals were injected. Instead of lowering the errorrates, they increased. For all Ohio executions up to JosephClark, there was a technical error rate of 45%, a duration errorrate of 50% and a myoclonic error rate of 14%. The executionsafter the additional steps were added had a technical error rate

of 60%, a duration error rate of 80% and myoclonic error rate of 20%.

These data support the hypothesis that Ohio did notadequately assess the problems illustrated by the Clark executionincluding such factors as the IV cannulae size and type, theadequacy of the pre-execution medical exam or the adequacy of theIV team training. Instead, Ohio opted to add an additional stepthat most probably relied upon inadequate factors, such asinadequately trained IV team members, to correct the problem.

There is no evidence that the Florida DOC currently trainsfor assessing consciousness in a manner that would significantlyimpact the statistical relationship between the current DOC errorrate and the prior execution error rate. Furthermore, the highDOC training error rate supports the hypothesis that the successof this extra step to reduce errors still relies upon poorlytraining personnel. As such, Florida will fare no better thanOhio in this regard.

Relevant to this issue is a comparative analysis mandated bythe Baze Court’s plurality opinion, see Baze, Slip Op. at 22, andthat any comparison by this court is a finding of fact ratherthan a conclusion of law.

8 See fn.9.

9 For example, on May 2, 2006, the execution of Joseph Clark took an “unprecedented amount of time” to effectuatedeath. Due to a failure to gain proper IV access, Clark’s execution lasted fifty-three minutes.

a. Ohio and Lethal Injection

Florida and Ohio use similar methods for execution by lethal injection.8 Like Florida, Ohio has also experienced recentproblems with lethal injection executions.9 Problems with IVaccess were well documented, leading to revisions in Ohio’sprotocols. Errors still occurred, however, during attempts togain IV access during subsequent executions. The Ohio dataincluded all information available for the twenty-six executionsby lethal injection from 1999 to 2007.

1.Ohio Technical Issues

Technical issues for Ohio were gathered from data containedin the execution logs prepared by the Ohio Department ofRehabilitation and Correction (DRC). This information wascorroborated from other sources. Out of the twenty-fiveexecutions for which data was available, twelve executions hadtechnical anomalies resulting in a 48% error rate. Using a probability formulation, there will be an expected total oftwenty-four technical anomalies after Ohio executes fiftyindividuals by lethal injection. This is shown in exhibit 14,Table 6.

Ohio’s recent history of lethal injection executions was

10 The analysis of the Ohio data was divided because the chemical injection procedure was changed after the Joseph

plagued by technical errors. Ohio’s DRC recognized this issuein June, 2006, and attempted to address problems with gainingproper IV access after the execution of Joseph Clark (#21). Asshown by the data, however, these problems continue to persist(executions 22,25,26).

2. Ohio Duration Issues

Ohio execution duration issue data were collected from the execution logs created by the DRC and pertained to the time fromthe start of the chemical injection process to the time thatdeath was pronounced. The expected execution duration was againcalculated from the affidavits and testimony of Dr. Dershwitzpertaining to an injection of two grams of thiopental sodium and100 milliequivalents of potassium chloride. This analysis showsthat the period from 1999 to May of 2006, Ohio’s mean executiontime was 8.6 minutes.10 Using the data provided by Dr. Dershwitz with a +/- time of one minute, the mean is 2.6 minutes above the expected execution duration. Also, during this period, ten outof twenty of Ohio’s lethal injection executions exceeded the timeparameter. This is a 50% execution duration error rate with anexpected twenty-five executions having duration errors after Ohioconducts a total of fifty executions. This is shown in exhibit14, Table 7a.

Clark execution. Beginning with the Rocky Barton execution in July, 2006, two separate sixty second saline flushesand assessments were added in lieu of the previous 20mL saline flush. No other significant changes were made.

11 The longer time for this flush and assessment replacement was added into the execution duration originallycalculated from Dr. Dershwitz’s testimony and sworn statements.

During the period from July 2006 to 2007, Ohio conductedfive executions.11 Four of these five executions exceeded theexecution duration resulting in an 80% error rate. This is shownin exhibit 1, Table 7b. One can reasonably conclude from thisand the data in Table 6 that Ohio’s revised protocols did notprevent error but instead increased its occurrence.12

Combining the data during this period (from Table 7a andTable 7b), finds that fourteen executions by lethal injection outof the twenty-five, or 56%, for which data was available,exceeded the established time parameters.

3. Ohio Myoclonic or Other Observable Movements

Myoclonic data for Ohio were collected from witnessobservations during executions by lethal injection. For thetwenty-six executions by lethal injection in Ohio, only four hadreported evidence of myoclonic movements, a 15% error rate withan expected eight executions having observable myoclonic eventsduring the injection sequence out of fifty executions in Ohio.This is shown in exhibit 14, Table 8.

4. Ohio Combined Data

The combined data presented above reveals that like Florida,40% of Ohio’s prior lethal injection executions had at least two

12 See section II(e) above for a complete discussion.

13 Since 2000, Georgia has adopted three different lethal injection protocols. The original execution protocolsbecame effective in May of 2000 with revisions in September of 2002 and June of 2007. Georgia’s chemical weights are different in some respects to Florida and Ohio. First, similar to Ohio, Georgia uses two grams ofthiopental sodium. Next, Georgia uses only 50 mg of pancuronium bromide compared to the 100 mg used by Floridaand Ohio. Lastly, where Florida uses 240 milliequivalents of potassium chloride and Ohio relies on a lower amountof 100 milliequivalents of potassium chloride, Georgia utilizes 120 milliequivalents of potassium chloride. LikeFlorida and Ohio, Georgia injects saline after the administration of the first two drugs. Ohio and Georgia, unlikeFlorida, also ends the chemical sequence with an injection of saline.

Also different is the injection delivery process, specifically, the syringe volumes used for the injectionsequence. Florida utilizes eight total volume 60cc (ml) syringes. Syringes 1 and 2 inject the sodium pentothal. Syringe 3 is a saline solution. Syringes 4 and 5 inject the pancuronium bromide. Syringe 6 is again saline. Finallysyringes 7 and 8 inject the potassium chloride. In Ohio, syringes 1 and 2 each inject a volume of 40cc of sodiumpentothal. Syringe 3 is a 20cc of saline flush. Syringes 4 and 5 each inject a volume of 25cc of pancuroniumbromide. Syringe 6 is another 20cc of saline flush. Syringe 7 is a 50cc injection of the potassium chloride. Finally, syringe 8 is a 20cc saline flush. Georgia uses seven total volume 60cc syringes. Syringes 1 and 1a each inject thesodium pentothal. Syringe 2 (the third in the sequence), is a 60cc saline flush. Syringe 3 delivers the pancuroniumbromide. Syringe 4 is another saline flush. Syringe 5 is the potassium chloride. Finally, syringe 6 (the seventh in thesequence) is a saline flush.

It should be noted that the Georgia 2002 and 2007 protocols are similar with respect to the injection process.The original 2000 protocols appear to be different. They also are vague as to the volumes used for each chmical. However, based on testimony given in the State v. Nance hearings held on April 30th and July 30th, 2002, theinjection process appears the same.

For example, during the execution of Jose High in November of 2001, the medical technicians had difficultyestablishing IVs in both his arms. While IV access was established in High’s left hand, the technicians were unable to establish an IV line in the right arms, hand or foot. As a result, technicians had to perform the much morecomplicated procedure of establishing a central line in his neck. Jose High’s execution, however, was not a solitaryoccurance. In fact, Georgia’s first four lethal injection executions all had problems with establishing proper IV

shared areas of concern implicating the Eighth Amendment. Seven executions had at least two anomalies. Three executions had allthree present (one of which was the execution of Joseph Clark).This is shown in exhibit 14, Table 9.

b. Georgia and Lethal Injection

Georgia has also experienced problems with lethal injection executions since the state first used this method back in 2001.Like Florida and Ohio, Georgia uses the same three chemicals hashad persistent problems with gaining proper IV access.13

Data collection for Georgia was done using information

access.

14 Alderman v. Donald, Case No. 1:07-CV-1474-BBM (N.D. Atlanta).

15 According to the testimony in Alderman, even though the protocols require only one nurse on the IV team,Georgia in practice uses two. Order and Opinion, Alderman v. Donald, Case No. 1:07-CV-1474-BBM, at 5.

gathered primarily from the Alderman v. Donald proceedings, a federal §1983 challenge in the United States District Court forthe Northern District of Georgia which concluded in May of2008.14 These data included all information available fromGeorgia lethal injection executions from 2001 to 2007 duringwhich time seventeen executions by lethal injection wereconducted.

1. Georgia Technical Issues

Technical issues for Georgia were gathered from datacontained in the medical examiner reports and the execution logsmaintained by the Georgia Department of Corrections (GDOC).Technical issues data were available for all seventeen executionsin this area in which thirteen had technical anomalies resultingin a 76% error rate with an expected total of 30 technicalanomalies after Georgia executes forty individuals by lethal injection. This is shown in exhibit 14, Table 10.

This is a substantial error rate that appears to have gone unrecognized and thus uncorrected. The reason why Georgia hassuch a high technical error rate, even though the IV teamconsists of two nurses, is most likely a result of the trainingschedule which does not require periodic sessions.15

Further supporting this data are the initial reports aboutthe June 6, 2008, execution of Curtis Osborne. According topress accounts, the IV team took thirty-five minutes to find asuitable vein. This is consistent with Georgia’s high technicalerror rate (76%) and our probability calculation for futureexecutions.

2. Georgia Duration Issues

Georgia execution duration data were collected from theexecution logs maintained by the GDOC. The relevant Georgiainformation pertained to the start of the chemical injectionprocess to the time that death was pronounced. The expectedexecution duration was calculated from the affidavits andtestimony of Dr. Dershwitz specific to the chemical weight andvolume used in Georgia.

Data was available for fifteen of the seventeen executionsconducted from 2001 to 2007. Georgia’s mean execution time was10.3 minutes. Based on the evidence provided by Dr. Dershwitz,the expected execution duration in Georgia is nine minutes.Using the same +/- one minute as before, the longest executionduration should be ten minutes. While the mean duration was only.3 above the expected duration, 33% of Georgia executions, or five out of fifteen, still exceeded the duration time parameterwith an expected thirteen executions having duration errors after

Georgia’s duration error rate is lower than that for Floridawhich may be due to the significantly lower amount of sodiumpentothal. For the difference between Georgia and Ohio, itappears that the difference may involve the chemical volume beinginjected. While Georgia’s injection process should take no morethan seven minutes to complete, Ohio should take no more thanfour minutes. This is a difference of three minutes whereas the difference between the two means is only 1.7 minutes.

As noted in section VII(b)(2), recent Georgia executionsafter Baze support the data and conclusions concerning theduration error rate. According to initital press reports, on May6, 2008, William Earl Lynd’s execution took seventeen minutes andthe June 4th execution of Curtis Osborne took fourteen minutes.Both executions were above the calculated duration parameter andabove Georgia’s mean execution duration of 10.3 minutes. Whilethe term “proof” is not a statistical term, it can be said thatthese reports support the conclusion concerning Georgia’sduration error rate.

3. Georgia Myoclonic or Other Observable Movements

For the seventeen total executions in Georgia by lethalinjection, only four had recorded instances of myoclonosis. This

is an error rate of 24% for an expected total of ten myoclonic errors after forty executions. This is shown in exhibit 14,Table 12.

4. Georgia Combined Data

The combined data presented above reveals that 35% ofGeorgia’s prior lethal injection executions had at least twoshared areas of concern implicating the Eighth Amendment. Fourexecutions had at least two anomalies. Two executions had allthree present. This is shown in exhibit 14, Table 13.

The combined results for Florida, Ohio and Georgia show atechnical issue error rate of 43%, a duration issue error rate of55%, and a myoclonic issue error rate of 24%. In addition, thecombined data show that 39% of the executions had the presence oftwo or more anomalies.

Florida

Ohio

Georgia

Florida,Ohio,Georgia

TechnicalErrors

35%

48%

76%

53%

DurationErrors

53%

56%

33%

49%

MyoclonicErrors

35%

15%

24%

24%

Two orMoreErrors

40%

40%

35%

38%

c. Mean Duration Comparison

As noted above, a comparison between Florida, Ohio and

Georgia is relevant to a Baze analysis where some conclusions can be made about the pharmacokinetics of these chemicals which havenever been studied before in these amounts. Most relevant is thesodium pentothal that seems to impact the duration of anexecution with the assumption, or hypothesis, that Florida uses5grams of sodium pentothal to hasten the death of an individual.

Florida uses five grams of sodium pentothal and 100milligrams of pancuronium bromide. The mean execution durationis 13.8 minutes. Next, Ohio uses 2 grams of sodium pentothal and100 milligrams of pancuronium bromide. Ohio’s most recent fiveexecutions under the new protocols had a mean execution durationof 10.4 minutes. The prior twenty executions in Ohio had a meanof 8.6 minutes. Georgia, which uses 2grams of sodium pentothal and 50 milligrams of pancuronium bromide, has a mean executionduration time of 10.3 minutes.

The data does not support Florida’s hypothesis that moresodium pentothal hastens death. In fact the data is contrary tothe hypothesis. The difference between the Florida mean and theGeorgia mean is 3.5 minutes. The difference between the Floridamean and the Ohio mean under Ohio’s newest protocols is 3.4minutes. The difference between the Florida mean and the Ohiomean under the prior protocols is 5.2 minutes.

d. The Netherlands

Discussed during both Lightbourne and Baze was theNetherlands and its experience with euthanasia and physicianassisted suicide (“EAS”). (see exhibit 5) The comparison isrelevant because both practices are designed to end life and bothprofess to do so in a humane manner. The Dutch study found thatin EAS cases, there was a technical issue error rate of 5%, a duration issue error rate of 7%, and a myoclonic issue error rateof 4%. As noted above, Florida lethal injection executions havea technical issue error rate of 35%, a duration issue error rateof 53%, and a myoclonic issue error rate of 35%. Ohio lethalinjection executions have a technical issue error rate of 48%, aduration issue error rate of 56%, and a myoclonic issue errorrate of 15%. Georgia lethal injection executions have a technical issue error rate of 76%, a duration issue error rate of 33%, anda myoclonic issue error rate of 24%.While Dutch EAS practices aredone in a clinical setting, the difference between the EASpractices, Florida, Ohio and Georgia lethal injection executionsare substantial.

Florida

Ohio

Georgia

Netherlands

TechnicalErrors

35%

48%

76%

5%

DurationErrors

53%

56%

33%

7%

MyoclonicErrors

35%

15%

24%

4%

VIII. Executive Discretion vs. Judicial Oversight

Schwab and Lightbourne reaffirmed this Court’s decision inSims v. State, 754 So.2d 657 (Fla. 2000) to accord heavydeference to the DOC with regard to virtually every aspect of thelethal injection protocols and the way they are implemented. Thelower court in its Order likewise followed this reasoning.Justice Thomas declined to join the plurality opinion in Baze inpart because, in his view, comparative risk standards “require courts to resolve medical and scientific controversies” that hefelt were “beyond judicial ken,” and the judiciary should not, ashe put it, “micromanage the State’s administration of the deathpenalty in this manner.” The language and reasoning he employedare strikingly similar to that expressed by this Court in Sims,Lightbourne and Schwab. Since those views now represent thelosing side, presumably the courts must now resolve at least somemedical and scientific controversies and engage in at least somemanagement of the administration of the death penalty.

However, executive discretion in the area of capitalpunishment has long been diminished. Article I, section 17 of theFlorida Constitution, the conformity clause, provides that: “Theprohibition against cruel or unusual punishment, and theprohibition against cruel and unusual punishment, shall be

construed in conformity with decisions of the United States Supreme Court which interpret the prohibition against cruel andunusual punishment provided in the Eighth Amendment to the UnitedStates Constitution.” This constitutional amendment, ratified bythe electorate, removed any separate and independent discretionthat the DOC may have had in this area and firmly placed it withthe United States Supreme Court.

Furthermore, judicial oversight of capital punishment at the expense of executive discretion has a long tradition in our jurisprudence. This principle was again reaffirmed this term inthe U.S. Supreme Court’s decision in Kennedy v. Louisiana (June25, 2008). In Kennedy, the Supreme Court is very clear as towhich branch of government controls the process of capitalpunishment in the country. The Court stated:

This is of particular concern when the Court interprets themeaning of the Eighth Amendment in capital cases. When thelaw punishes by death, it risks its own sudden descent intobrutality, transgressing the constitutional commitment todecency and restraint. For these reasons we have explainedthat capital punishment must “be limited to those offenders who commit ‘a narrow category of the most serious crimes'and whose extreme culpability makes them ‘the most deservingof execution.’ ” Roper, supra, at 568, 125 S.Ct. 1183(quoting Atkins, supra, at 319, 122 S.Ct. 2242). Though thedeath penalty is not invariably unconstitutional, see Greggv. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859(1976), the Court insists upon confining the instances inwhich the punishment can be imposed. Applying thisprinciple, we held in Roper and Atkins that the execution ofjuveniles and mentally retarded persons are punishments violative of the Eighth Amendment because the offender had adiminished personal responsibility for the crime. See Roper,

supra, at 571-573, 125 S.Ct. 1183; Atkins, supra, at 318,320, 122 S.Ct. 2242. The Court further has held that thedeath penalty can be disproportionate to the crime itselfwhere the crime did not result, or was not intended toresult, in death of the victim. In Coker, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982, for instance, the Court held itwould be unconstitutional to execute an offender who hadraped an adult woman. See also Eberheart, supra (holdingunconstitutional in light of Coker a sentence of death forthe kidnaping and rape of an adult woman). And in Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140(1982), the Court overturned the capital sentence of adefendant who aided and abetted a robbery during which amurder was committed but did not himself kill, attempt tokill, or intend that a killing would take place. On theother hand, in Tison v. Arizona, 481 U.S. 137, 107 S.Ct.1676, 95 L.Ed.2d 127 (1987), the Court allowed thedefendants' death sentences to stand where they did notthemselves kill the victims but their involvement in the events leading up to the murders was active, recklesslyindifferent, and substantial. In these cases the Court hasbeen guided by “objective indicia of society's standards, asexpressed in legislative enactments and state practice withrespect to executions.” Roper, 543 U.S., at 563, 125 S.Ct. 1183; see also Coker, supra, at 593-597, 97 S.Ct. 2861(plurality opinion) (finding that both legislatures andjuries had firmly rejected the penalty of death for the rapeof an adult woman); Enmund, supra, at 788, 102 S.Ct. 3368(looking to “historical development of the punishment at issue, legislative judgments, international opinion, and thesentencing decisions juries have made”). The inquiry doesnot end there, however. Consensus is not dispositive.Whether the death penalty is disproportionate to the crimecommitted depends as well upon the standards elaborated by controlling precedents and by the Court's own understandingand interpretation of the Eighth Amendment's text, history,meaning, and purpose. See id., at 797-801, 102 S.Ct. 3368;Gregg, supra, at 182-183, 96 S.Ct. 2909 (joint opinion ofStewart, Powell, and STEVENS, JJ.); Coker, supra, at 597-600, 97 S.Ct. 2861 (plurality opinion).Based both on consensus and our own independent judgment, our holding isthat a death sentence for one who raped but did not kill achild, and who did not intend to assist another in killingthe child, is unconstitutional under the Eighth andFourteenth Amendments.

Kennedy, Slip Op. at 9-10.

It is very clear that the United States Supreme Court mandates that judicial oversight of capital punishment must never give way toany claim of executive discretion. The Court is very clear instating which branch of government sets the limits of the EighthAmendment, reaffirming the primacy of judicial oversight.

CONCLUSION

Based on the foregoing arguments, Mr. Schwab requests that this Court issue an Order remanding his case for a full and fairevidentiary hearing or for such other relief as this Court may deemappropriate.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing InitialBrief of Appellant has been furnished by e-mail and U.S. Mail,first class postage, to all counsel of record on this 26th day ofJune, 2008.

s/Peter J. Cannon

Peter J. Cannon

Florida Bar No. 0109710

Mark S. Gruber

Florida Bar No. 0330541

CAPITAL COLLATERAL REGIONALCOUNSEL - MIDDLE REGION

3801 Corporex Park Drive, Suite 210Tampa, Florida 33619

(813) 740-3544

Attorneys for Defendant

CERTIFICATE OF COMPLIANCE

Pursuant to Fl.R.App.P. 9.210, I hereby certify that thisbrief is prepared in Courier New 12 point font and complies withthe requirement of Rule 9.210.